Supreme Court No. 2012-132-Appeal. (PC09-4532)

Luz N. Rivera :

v. : Robert Viola alias et al. :

O R D E R

The plaintiff, Luz N. Rivera, appeals from a Superior Court summary judgment and entry of final judgment in favor of Sally A. Bailey, one of the two named defendants in the case. The plaintiff was involved in an automobile accident wi th Bailey’s vehicle, which was being driven at the time by the defend ant Robert Viola, a valet driver. Before this Court, the plaintiff contends that the bailee/bailor rela tionship between the defendants should not preclude the plainti ff’s potential recove ry against both the defendants. However, although she filed a blanket objection in Superior Court in response to Bailey’s motion for summary judgme nt, the plaintiff did not appear to press her objection at the hear ing on the matter. This Court previously has recognized that “[i]f a party fails to assert a legal reason why summary judgment should not be granted, that ground is wa ived and cannot be considered or raised on appeal.” Da llman v. Isaacs, 911 A.2d 700, 704 (R.I. 2006) (quoting Grenier v. Cyanamid Plastics, In c., 70 F.3d 667, 678 (1st Cir. 1995)). In Dallman, this Court stated that “it was incu mbent upon [the] plaintiffs to inform the motion justice of the various legal arguments they now advance before this Court to preserve them for our review.” Id. at 705. The plaintiff’s “fa ilure to do so forces [theCourt] to conclude that [the plaintiff has] waived [her] claims.” Id. (citing Thomas v. Ross, 477 A.2d 950, 953 (R.I. 1984) (“holding that the party w ho fails to argue certain issues at trial may not assert those claims for relief at the appellate level”)). Further, “[t]he party appealing an award of summary judgment cannot ‘advance new theories or

raise new issues in order to secure a reversal of the lower court’s de termination.’” Id. at 704-05 (quoting 10A Charles Alan Wright et al., Federal Practice and Procedure Civil: § 2716 at 282, 284, 286 (1998) and c iting and quoting James W. Moore, Moore’s Federal Practice § 56.41[3][c] at 56-303 (3d ed. 2006) (“As a general rule, arguments and evidence not presented in the [trial] court in connection with a summary judgment motion are waived on appeal and the appellate court wi ll be unable to consider these materials in its review of the [trial ] court’s decision.”)). It is significant that, before this Court, the plaintiff does not explain her failure to appear at the scheduled hear ing on Bailey’s motion for summary judgment. By failing to appear at the hearing and inform the motion ju stice of the legal base s for her objection to the motion, the plaintiff has waived any arguments that she may present now to this Court. The plaintiff’s appeal is denied and dismissed and the judgment appealed from is

affirmed.

Entered as an Order of this Court this 15 th day of November 2012.

By Order,

___________/s/____________________ Clerk

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE 

### Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Luz N. Rivera v. Robert Viola alias et al. CASE NO: No. 2012-132-Appeal. (PC09-4532) COURT: Supreme Court DATE ORDER FILED: November 15, 2012 JUSTICES: Suttell, C.J., Goldberg, Flah erty, Robinson, and Indeglia, JJ.

WRITTEN BY: N/A – Court Order SOURCE OF APPEAL: Providence County Superior Court JUDGE FROM LOWER COURT : Presiding Justice Alice B. Gibney ATTORNEYS ON APPEAL: For Plaintiff: Richard P. Brederson, Esq.

For Defendant Robert Vi ola: David O. deAbreu, Esq. For Defendant Sally A. Ba iley: Mark H. Burnham, Esq. Thomas A. Madden, Esq.